Page 1 before the iowa industrial commissioner ____________________________________________________________ : SUSAN BLODGETT, : : Claimant, : : vs. : : File No. 965009 CATHOLIC HEALTH CORPORATION, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : RELIANCE NATIONAL INSURANCE : COMPANY, Represented by: : : SEDGEWICK JAMES, Administrator: : Insurance Carrier, : Defendants. : ___________________________________________________________ introduction This is a proceeding in arbitration filed by Susan Blodgett, claimant, against Catholic Health Corporation, employer, and Reliance National Insurance Company, represented by Sedgewick James, administrator, for benefits as a result of an alleged injury which occurred on October 17, 1990 (Transcript, page 3). A hearing was held in Council Bluffs, Iowa on May 13, 1992 and the case was fully submitted at the close of the hearing. Claimant was represented by Jacob J. Peters. Defendants were represented by Melvin C. Hansen. The record consists of the testimony of Susan Blodgett, claimant, Karen Stricklett, rehabilitation consultant, Jodi Strehle, vocational rehabilitation employee, Michael Newman, vocational consultant and joint exhibits 1 through 54. Both attorneys submitted excellent post-hearing briefs. issues The parties submitted the following issues for determination. Whether claimant sustained an injury, on October 17, 1990, which arose out of and in the course of her employment with employer. Whether the alleged injury was the cause of either temporary or permanent disability. Whether claimant is entitled to either temporary or permanent disability benefits and if so, the nature and extent of benefits to which she is entitled. Whether claimant is entitled to penalty benefits Page 2 pursuant to Iowa Code section 86.13(4). findings of fact injury It is determined that claimant sustained an injury to her lumbar spine on October 17, 1990, which arose out of and in the course of her employment with employer. Claimant started to work for employer in April of 1990. She was hired by her supervisor, Susan Lorkovic (Ex. 52, p. 9), as a general duty nurse on a medical surgical floor (Ex. 52, p. 10). Claimant testified that she injured her lumbar spine while attempting to rescue a confused patient who was getting out of bed. Claimant testified, "I grabbed her and maneuvered her back into bed." (Tran., p. 29). Claimant said this was a very big woman and that she prevented the woman from hitting the floor. During the process she twisted her back and felt a strong pull and a sharp pain near her tailbone. After the incident claimant was assisted by the house supervisor who insisted that claimant make an incident report (Tran., pp. 30 & 31). Bobbie Pearey, employee health services manager, testified by deposition that claimant did report the incident promptly. Pearey verified that the clinical nursing duty which claimant was performing very definitely required lifting and physical work. Pearey testified that her assistant recorded that claimant was putting a confused, combative patient back to bed and that she twisted the lumbar area of her back while doing it. Claimant and Pearey both testified that claimant was initially referred to James Rochelle, M.D. (Tran., p.34; Exhibit 52, p. 15). Claimant testified that the injury occurred on Wednesday, October 17, 1990. She felt bruising on Thursday, October 18, 1990. On Friday, October 19, 1990, claimant testified that she bent over at home and that she could not get back up. She said her back locked up. Claimant said that nothing like this had ever happened before and there is no evidence that claimant had any prior back injuries (Tran., pp. 32 & 33; Ex. 1, pp. 1-8; Ex. 13, pp. 1-5). Doctor Rochelle saw claimant on Tuesday, October 23, 1990. His x-rays disclosed mild disc space narrowing at L4-L5 with a small osteophyte but no acute changes. He diagnosed a probable lumbar disc bulge with left leg sciatica and quadricep weakness. On Tuesday, October 30, 1990, Dr. Rochelle referred claimant to Alan H. Fruin, M.D., a neurosurgeon, to evaluate the finding of quadricep weakness by way of a myelogram or an MRI (Ex. 16 & 17). Claimant testified that when they called her name in Dr. Rochelle's office, she stood up, her leg went out, it buckled, and she fell to the floor (Tran., p. 35 & 36). Page 3 Dr. Fruin saw Claimant on November 2, 1990 for a six week history of back and left leg pain which was not resolving. He said claimant had paresthesias in her left leg and that she was falling a great deal. Dr. Fruin scheduled an MRI examination (Ex. 18). A CT scan ordered by Dr. Fruin on November 6, 1990, at St. Joseph Hospital raised the question of a moderate sized central L4-5 disc herniation, however, the radiologist could not be sure due to the patient's obesity which caused considerable statistical mottle within the spinal canal which reduced the quality of the image. No definite disc herniation or spinal stenosis was detected at L5-S1 but again the quality of the image was degraded by the patient's obesity (Ex. 14). Claimant testified that her weight at the time of the hearing was 330 pounds that it was probably more than that at the time of the injury (Tran., p. 83). An electromyogram and nerve conduction test on November 16, 1990, showed normal nerve conduction testing and a normal EMG in the left lower extremity. The testing medical doctor concluded, "To summarize, the electrical testing is currently normal, and without evidence of any injuries to myelin or axons at a left lower extremity peripheral nerve, left lumbosacral plexus, or left lumbosacral motor nerve root level at this time." (Ex. 21). Claimant testified that Dr. Fruin ordered an MRI out in west Omaha, but Heartland Rehabilitation, her medical case manager transferred her care to Bernard L. Kratochvil, M.D., an orthopedic surgeon and that she did not receive the MRI at that time (Tran., p. 36). Jeanette Obal, the Heartland Rehabilitation specialist at that time reported on January 19, 1991, that Dr. Fruin's treatment plan was rest and symptomatic treatment and that he refused to prescribe physical therapy or work hardening. She said that Dr. Fruin diagnosed chronic lumbar strain; that claimant should not lift greater than 20 pounds; and that claimant should alternate sitting, standing and walking. Dr. Fruin was unable to anticipate the date of maximum medical improvement or a date of release to return to work without restrictions. Obal reported that at this point the course of medical case management was altered and an appointment was made with Dr. Kratochvil on January 28, 1991 (Ex. 31, pp. 2 & 3). Dr. Kratochvil recorded on January 28, 1991, that claimant injured her lower back while trying to prevent a patient from falling. She complained of pain in the lower back, both buttocks and lower extremities posteriorly. His physical examination disclosed only tenderness to pressure in the lower lumbar area. The straight leg raising test was negative on both sides. There were no neurologic deficits in the lower extremities. Strength was adequate and there was no sensory disturbance in the lower extremities. There was no muscle spasm or structural deformity of the back. Page 4 A.P. view x-rays of the lumbar spine were normal and showed the spine as straight. The lateral view showed narrowing of the L4-5 and L5-S1 disc spaces. No further changes were noted. Dr. Kratochvil diagnosed (1) degenerative discs at L4-5 and L5-S1 and (2) lumbar strain/sprain. He ordered physical therapy and medications (Ex. 13, pp. 5 & 6; Ex. 51, pp. 5-9). Dr. Kratochvil stated that the lumbar strain was caused by the lifting incident which occurred on August 17, 1990. The degenerative disc problem was a wear and tear change or an aging change that was not caused by this injury (Ex. 51, pp. 9 & 10). Dr. Kratochvil also agreed that the degenerative changes preexisted the strain/sprain (Ex. 51, p. 26). The doctor said the degenerative disc disease was not caused by the work but the sprain/strain injury did aggravate the preexisting degenerative disc disease (Ex. 51, pp. 28 & 29). Furthermore, Pearey, the manager of employee health services for employer, testified that there was no evidence that claimant had any prior back injuries (Ex. 52, p. 9) and that she did not have any reason to believe that claimant was injured off the job (Ex. 52, p. 14). Wherefore, it is determined that all of the medical and nonmedical evidence in this case support the determination that claimant sustained an injury to her lumbar spine on October 17, 1990, while handling a patient which arose out of and in the course of her employment with employer. causal connection It is determined that the injury of October 17, 1990, to claimant's lumbar spine was the cause of both temporary and permanent disability. The same evidence which proves that the employment was the cause of the claimant's injury also establishes that the injury was the cause of both claimant's temporary disability and permanent disability. Dr. Kratochvil attributed claimant's entire problem to this injury (Ex. 51, p. 9, 10, 26, 28, 29). Claimant gave a consistent history to her supervisors at work and to all of the doctors. This history was not disputed by any of her supervisors, the manager of employee health services, other employer representatives, the insurance company, counsel for the defendants, Dr. Rochelle, Dr. Fruin, or Dr. Kratochvil. Dr. Kratochvil testified that he did not believe that claimant had any trouble prior to this incident (Ex. 51, p. 28). Claimant denied and there is no evidence of any prior back problems. Wherefore, it is determined that the injury of October 17, 1990, to claimant's lumbar spine while assisting a patient was the cause of both temporary and permanent disability. entitlement-temporary disability benefits It is determined that claimant is entitled to 45.429 Page 5 weeks of healing period benefits. She is entitled to 36 weeks of healing period from October 19, 1990 through June 27, 1991. She is entitled to an additional 9.429 weeks of healing period benefits for the period from March 4, 1992 through May 8, 1992. Claimant's healing period begins on October 19, 1990 for the following reasons. First, claimant testified that the injury occurred on October 17, 1990. She felt bruising but worked on October 18, 1990. On the third day after the injury, October 19, 1990, she was unable to work and talked to the employee health nurse. "I was instructed to see a doctor." (Tran., p. 33). Second, Pearey, the employee health services manager, testified that claimant reported the injury and about two days later she called in ill due to back pain (Ex. 51, p. 11). Third, the records of Dr. Rochelle verify that claimant was able to complete working her shift on the day of the injury (October 17, 1990) and that she was able to work the next day (October 18, 1990) but that she has been off work since that time (October 19, 1991) (Ex. 17). Dr. Rochelle referred claimant to Dr. Fruin on October 31, 1990. Dr. Fruin issued a slip on November 2, 1990, that claimant should be off work until further notice (Ex. 19). Dr. Fruin never did return claimant to work. He was unable to anticipate the date of maximum medical improvement or a date of release of return to work without restriction (Ex. 31, p. 3). As late as May 15, 1991, Dr. Fruin said that he told claimant that he thought she would eventually improve but that in all likelihood it would take months (Ex. 20). When Dr. Kratochvil first saw claimant on January 28, 1991, he continued to keep her off work (Ex. 13, p. 6). When Dr. Kratochvil allowed claimant to return to work on February 28, 1991, it was only on a part-time, trial basis for a temporary period of time while he continued to treat claimant with physical therapy and prescription medications. When Dr. Kratochvil returned claimant to work in March of 1991 claimant had specific restrictions of not doing anything strenuous (Ex. 3). He made it clear that this was not a release for full-time work and that a permanent impairment had not yet been established as of February 28, 1991 (Ex. 3). Claimant described how she made a good faith effort to work in March of 1991 but contended that she was unable to do it (Tran. pp. 40-48). Claimant testified that Dr. Kratochvil said, "If you can work, work. It you can't, don't work. If you can't work, you can't work, is what he said. And at that point, I couldn't." Therefore Dr. Kratochvil wrote on April 1, 1991 that claimant was to remain off work until further notice because of her degenerative disc disease and lumbar sprain/strain (Ex. 4). On April 4, 1991, an MRI of the lumbar spine without contrast was performed at the request of Dr. Kratochvil. The radiologist stated that the patient is quite obese weighing 300 pounds. She also moved during the examination. Page 6 This detracted from the quality of the study. However, he believed that he had obtained some helpful information from the scan. At L4-L5 he found moderate degeneration and moderate protrusion of the disc to the left. At L5-S1 he found mild degeneration and mild posterior protrusion to the left (Ex. 15). On May 2, 1991, Dr. Kratochvil clinically could only find tenderness to pressure in the lower back. Leg raising was negative there was no neurological deficit. He recommend she see Dr. Fruin again. He also suggested a caudal block and a lumbar myelgram. He also suggested a functional capacity assessment. He concluded that she had not reached a maximum medical improvement unless she decides to forego any further procedures. He felt it was too soon to determine permanent impairment as well (Ex. 6, p. 3). On May 2, 1991, Dr. Kratochvil said he did not believe claimant had reached maximum medical improvement (Ex. 6, p. 3). On May 15, 1991, Dr. Fruin reported that he saw claimant on May 10, 1991, due to her longstanding chronic lumbar strain. He said the MRI scan did show significant degeneration of her lumbar discs, but there is no evidence of herniation and there was certainly no clinical suggestion of a neurological impairment. He said it would be months before she realized improvement from this condition. He recommended that she find work that did not require significant standing, lifting or repetitive bending. He recommended only symptomatic care of simple analgesics and anti-inflammatory agents for her complaints (Ex. 20). The functional capacity assessment was conducted on May 17, 1991 by John Dobler, a physical therapist. He reported on May 21, 1991, that claimant reported increased symptoms in her low back with all activities. He said the validity of the test indicated that claimant may have a focus on her pain and limitations. He said the test results were only conditionally valid representations of claimant's present physical capabilities because the test results represented only what claimant perceived as her capabilities and that working beyond these levels would probably elicit symptoms that she would find painful and problematic. He added that her functional capabilities had decreased since she participated in his flexibility and strengthening program in February of 1991. He indicated she would be a good candidate for a comprehensive pain management program which would address her physical condition, pain management and coping skills (Ex. 24). Dr. Kratochvil explained that the term "conditionally valid" was a term used when the physical examiner was not able to get complete cooperation from the patient or if the patient had discomfort performing some of the tests. He said it usually indicates that the functional capacity assessment doesn't give a complete picture of what the patient is able to do (Ex. 51, p. 22). On May 29, 1991, Dr. Kratochvil noted that Dr. Fruin agreed that only symptomatic care of simple analgesics and anti-inflammatory agents were indicated for this patient. Page 7 He noted that the functional capacity assessment was only conditionally valid but the test indicated that she could perform tasks in the sedentary work category with limited walking and standing tolerances. Dr. Kratochvil said he had suggested (1) a caudal block, (2) a lumbar myelogram, (3) an MMPI evaluation and (4) a pain management clinic at the University of Nebraska but that claimant was not particularly receptive to any of these ideas. He said he had nothing further to suggest in the way of treatment. He added that her work capacities as outlined in the functional capacity assessment were probably only temporary. He estimated that she had a 5 percent permanent partial impairment of the whole person as a result of this injury. However he did not specifically state whether claimant had obtained maximum medical improvement as of May 29, 1991 (Ex. 7). Dr. Kratochvil did clarify and specify on June 27, 1991, "Susan Blodgett has reached maximum medical improvement and has a 5 percent permanent impairment of the whole person as a result of her injury in October of 1990. There are other forms of treatment and evaluation, but at her last visit she was not receptive to those suggestions." (Ex. 8). Dr. Kratochvil, who is a board certified orthopedic surgeon and who has been practicing orthopedic surgery for 20 years (Ex. 51, p. 6) testified, "She was looking for some easy answer, as far as I could tell, and there were none." (Ex. 51, p. 19). Dr. Kratochvil added that when she left he got the impression that claimant was not coming back (Ex. 51, p. 20). Therefore, Dr. Kratochvil testified that on June 27, 1991, he determined that claimant had reached a maximum medical improvement (Ex. 51, p. 39) and determined that claimant had sustained a 5 percent permanent impairment of the whole person as a result of this injury ( Ex. 51, p. 41). An unreasonable refusal by an employee to accept medical treatment may be the basis for terminating healing period benefits. Johnson v. Tri City Fabricating and Welding Company, 33 Biannual Report, Iowa Industrial Commissioner 179 (Appeal Decision 1977). At the same time a reasonable refusal of medical treatment should not be the basis for terminating healing period benefits. Bruneau v. Insulation Service Inc., 1 Iowa Industrial Commissioner Report 34, 35 (Appeal Decision 1981); Decker v. Hartford Auto Sales, Inc., 2 Iowa Industrial Commissioner Report 105 (1982); Adams v. Happel & Sons, Inc., 34 Biannual Report, Iowa Industrial Commissioner 11 (1979); Wachsman v. Mason City Tile & Marble Co., 32 Biannual Report, Iowa Industrial Commissioner 165 (1975); Arnaman v. Mid America Freight Lines, I-3 Iowa Industrial Commissioner Decision 497 (1985); John Deere Davenport Works, II-1 Iowa Industrial Commissioner Decisions 305 (1984); Smith v. Wayne County, I-1 Iowa Industrial Commissioner Decisions 232 (1984). It is determined that claimant's refusal of a caudal block, a myelogram, a Minnesota multi-basic inventory (MMPI) and treatment at a pain management center did not constitute unreasonable refusal of medical treatment. A caudal block and a myelogram require a spinal injection which is a Page 8 physically invasive procedure and entails some serious risks. Patients are normally required to sign a waiver of liability and acknowledge that they have been informed that these procedures could result in paralysis or death. Claimant, a registered nurse, testified that her experience with patients who had received caudal blocks was that they were not successful. Furthermore, she added that she had a spinal tap when she had encephalitis as a teenager and that it was a very traumatic experience and as a result of that she had a fear of spinal injections (Tran., pp. 49 & 50). Dr. Kratochvil understood and explained that claimant's fear was not unusual. He testified, "I think that she just didn't like the idea of having a needle put in the lower back, which a lot of people feel that way about it." (Ex. 51, p. 16). It is the agency expertise of this deputy that caudal blocks frequently do not provide any relief from pain, and in the few instances where they have been successful they only provided temporary relief for a matter of a few hours. With respect to the myelogram, it was not necessary because both Dr. Fruin and Dr. Kratochvil agreed that claimant was not a surgical candidate. In addition, claimant had x-rays, a CT scan and a MRI and there was no evidence that a myelogram was essential to her diagnosis or treatment of a lumbar sprain/strain. There is no evidence medical or nonmedical, from either Dr. Fruin, Dr. Kratochvil or any other source that a myelogram or a caudal block would have improved claimant's back strain. Nor was there any such evidence that MMPI or treatment at a pain management facility, both of which are usually psychologically invasive procedures, would have added anything to the diagnoses of lumbar back strain/sprain, improve claimant's condition or significantly altered the course of improvement of her condition. Even though claimant requested evaluation and treatment at the University of Nebraska Medical Center Pain Clinic and Dr. Kratochvil prescribed it on August 26, 1991, there is no evidence that the insurance carrier authorized this treatment or that claimant attended this treatment. Furthermore, there is no evidence that if claimant had attended the pain clinic her condition would have been improved. Dr. Kratochvil testified that the program attempts to wean claimants from medications and is geared to get the individual to learn to live with their problem (Ex. 51, pp. 32 & 33). Wherefore, it is determined that claimant's refusal of these four procedures was not unreasonable and it does not require a termination of temporary weekly benefits. Nevertheless, claimant's refusal of these four procedures by the board certified treating orthopedic surgeon, with 20 years of experience, place Dr. Kratochvil in the position to state legitimately that he had nothing further to offer claimant and supported his conclusion of June 27, 1991, that claimant had attained maximum medical Page 9 improvement. Claimant attempted to make out a case for additional healing period benefits by virtue of the fact that Dr. Kratochvil testified that after June 27, 1991 claimant remained in his care and that she was unable to work and that he had not released her to return to work (Ex. 51, p. 29-38). However, Iowa Code section 85.34 (1) states that healing period terminates when the first of the three conditions occurs. The first condition to occur was the determination of Dr. Kratochvil that claimant had attained maximum medical improvement on June 27, 1991. It still never has been determined that claimant could return to work or even return to substantially similar employment. An examination of Dr. Kratochvil's notes and reports and his deposition testimony do not show any improvement between June 27, 1991 and March 4, 1992, when Dr. Kratochvil prescribed and claimant agreed to participate in a physical therapy/work hardening program which did in fact improve her condition. Between June 27, 1991 and January 7, 1992, Dr. Kratochvil stated that his notes indicated that she might require some occasional physical therapy or occasional medication but there is no evidence of any improvement in her condition until after she began the physical therapy/work hardening program on March 4, 1992 (Ex. 51, pp. 38-41). Dr. Kratochvil did write the prescription for the pain clinic on August 6, 1991 at claimant's request but there is no evidence that she participated in the pain clinic program (Ex. 51, p. 32; Ex. 9). It is quite possible that defendants denied her this treatment, since claimant requested this treatment. Claimant contended that the physical therapy/work hardening program and the pain clinic were denied to her in the fall of 1991, but that she was authorized to begin the physical therapy/work hardening program on March 4, 1992. An authorization was signed by Dr. Kratochvil on March 4, 1992 (Ex. 12). Claimant testified that the program was wonderful and she began getting stronger (Tran. pp. 65-68). Dr. Kratochvil renewed the prescription for the work hardening program again on April 24, 1992 (Ex. 51, p. 33 & Deposition Ex. 6). Dr. Kratochvil testified that he did not see claimant between May 29, 1991 and April 24, 1992. When he did see her on April 24, 1992, she was in the work hardening program, and she was feeling better. It seemed to be doing some good. Claimant was again receptive to getting back to work as a nurse (Ex. 51, p. 43). Claimant was in the work hardening program at the time of Dr. Kratochvil's deposition testimony (Ex. 51, p. 45). Dr. Kratochvil testified that when claimant completed the work hardening program on May 8, 1992, she would have attained maximum medical improvement a second time (Ex. 51, p.21 & 25). Dr. Kratochvil stated that the physical therapy/work hardening program he authorized on March 4, Page 10 1992, was an attempt to get claimant back to work through additional physical conditioning. He testified that it did improve her condition. Wherefore, it is determined that claimant is entitled to a second period of healing when she began showing improvement again from March 4, 1992, until the completion date of the physical therapy/work hardening program on May 8, 1992, a period of 9.429 weeks. In conclusion, it is determined that claimant is entitled to healing period benefits from the date she was first unable to work on October 19, 1990, until Dr. Kratochvil determined that she had attained maximum medical improvement on June 27, 1991, a period of 36 weeks. It is further determined that claimant is entitled to a second period of healing while claimant was in the physical therapy/work hardening program from March 4, 1992 through May 8, 1992, a period of 9.429 weeks. Claimant's total entitlement to healing period benefits then is 45.429 weeks of temporary total healing period benefits. entitlement-permanent disability It is determined that claimant has sustained a 30 percent industrial disability to the body as a whole and is entitled to 150 weeks of permanent partial disability benefits. Claimant contended that she sustained a 50 percent industrial disability to the body as a whole. Claimant's injury is sprain/strain of the lumbar spine which aggravated her moderate degeneration and protrusion of the L4-5 disc on the left and her mild degeneration and mild posterior protrusion of the L5-S1 disc to the left. The disc disease was issustrated by x-ray, a CT scan and MRI. Dr. Fruin recommended only symptomatic treatment of simple analgesics and anti-inflammatory agents (Ex. 20). Dr. Kratochvil concurred in this recommendation (Ex. 7). Surgery has never been recommended. Claimant has suffered a significant amount of depression during the course of her recovery. Dr. Kratochvil referred to it several times in his records and in his deposition testimony. However, Dr. Kratochvil testified, "I don't think it's directly related. I think that her depression is probably related to a lot of her personal problems." (Ex. 51, p. 36). Claimant was seen by John V. Fernandez, M.D., a psychiatrist at the request of her attorney on October 8, 1991. Among other things, Dr. Fernandez noted (1) her inability to work in the intensive care unit anymore, (2) her restriction to sedentary work, which she had not been able to find and (3) her inability to drive for more than 40 minutes without experiencing pain. He noted that she had always had a problem with obesity weighing between 295 pound and 330 pounds and that her obesity aggravated her back condition. Page 11 The doctor also noted mixed insomnia, deteriorating energy levels and no motivation to do anything at all. He also mentioned social withdrawal, pessimistic attitude, crying spells, poor concentration, forgetfulness, increased irritability and increased temper outbursts. Dr. Fernandez mentioned that claimant has hypertension controlled by medication and that she is also an insulin dependent diabetic. He said that the patient is preoccupied with her multiple social problems and her depressive symptoms. He diagnosed a major depressive disorder, probably reactive to the series of events that had afflicted her, which would include this injury and its consequent problems (Ex. 26). Defendants did provide claimant with some weight reduction assistance in January of 1991 (Ex. 22). Dr. Kratochvil assessed a 5 percent permanent impairment to the body as a whole caused by the lumbar sprain/strain which aggravated claimants degenerative disc disease. None of the other physicians, Dr. Rochelle or Dr. Fruin determined a permanent impairment rating. With respect to restrictions, Dr. Fruin recommended on May 15, 1991 that claimant find a job that does not require her spending significant time on her feet. He added that the job should not involve significant lifting or repetitive bending (Ex. 20). Dr. Kratochvil concurred in the same restrictions on May 29, 1991 (Ex. 13, p. 8). Defendants have been critical of the functional capacity assessment performed on May 21, 1991, because of its highly subjective rather than objective conclusions and claimant's failure to cooperate in her own recovery. The examiner reported (1) increased symptoms with all activities, (2) a focus on her pain and limitations, (3) that anger was an influence, and (4) that claimant had become physically deconditioned from earlier gains from physical therapy. The examiner reported that the physical capacity assessment was only conditionally valid because it was based upon claimant's perceived capabilities because claimant felt that working beyond these levels might be painful or problematic. Nevertheless, the conclusion of the examiner was that due to limited walking and standing tolerances claimant should be able to perform sedentary work (Ex. 24). Dr. Kratochvil testified in his deposition that he would concur in the functional capacity assessment recommendations even though they were only conditionally valid (Ex. 51, p. 24) and even though he stated on May 29, 1991, that these results were probably temporary at that time (Ex. 7, p. 2). Dr. Kratochvil concluded, "Basically, she shouldn't do any strenuous bending or lifting and she shouldn't be expected to be on her feet for long periods of time. In other words, she should have a job where she can sit and stand and walk whenever she feels a desire to do so." (Ex. 51, p. 24). Dr. Kratochvil said that claimant could work as a nurse Page 12 but there would have to be some restrictions on her job activities of no strenuous bending or lifting (Ex. 51, p. 24). Dr. Kratochvil agreed at another point that claimant was employable according to her previous functional capacity assessment and that she might require occasional physical therapy or occasional medication (Ex. 51, pp. 40 & 41). Dr. Kratochvil further testified a third time that he thought claimant was employable according to the restrictions of the functional capacity assessment and that in his opinion he thought they were still valid (Ex. 51, p. 44). Karen Stricklett, M.S., C.R.C., D.I.R.S., A.B.V.E., a private rehabilitation consultant, interviewed claimant on August 26, 1991, wrote a report on August 15, 1991 and testified at the hearing on August 13, 1992. Stricklett testified that sedentary employment is limited to lifting 10 pounds maximum, working while seated six of eight hours and minimal standing and walking (Ex. 97, p. 3). She testified that claimant's previous employments of nurse aid, licensed practical nurse, private duty nurse and general duty nurse were classified as medium work which requires lifting up to 50 pounds. Claimant's previous job as a phlebotomist is classified as light work which is typically lifting up to 20 pounds. Stricklett determined using her computer program that prior to this injury claimant had access to the employment market of 20.54 percent whereas after the injury her access was only 5.19 percent, which reflects a 75 percent loss of access to the Omaha Council Bluffs labor market, based upon the physical restrictions described by Mr. Dobler and Dr. Kratochvil (Tran., p. 92; Ex. 27, p. 8). Stricklett testified that her computer program was, "A very general tool - the figures that we get from running that program are not cut and dried, it just gives us some ideas as to how that person's employability has been impaired." (Trans., p. 95). Stricklett named several specialized hybrid type jobs that claimant could perform (Ex. 27, p. 8) but testified that it does not necessarily mean that she would qualify for those jobs. They are specialized jobs. They are few and far between. They are difficult to obtain (Tran. pp. 97 & 98). Stricklett testified that claimant would require selective job placement assistance which requires marketing the client to the employer and even offering the employer hiring incentives (Tran., pp. 98 & 99). Stricklett testified that you have to go out and sell that employee (Tran., p. 99). She said you might have to do a hard sell and negotiate some sort of an on-the-job training contract in order to find an employment opportunity for the client (Trans., p. 100). Stricklett testified that in this case it would require selective placement assistance (Tran., p. 101). Stricklett estimated that claimant earned $650 a week for the twenty-six weeks preceding her injury and that with selective placement in one of the remaining specialized jobs in the nursing field that claimant could earn $400 to $600 per week, which constituted an immediate wage loss somewhere Page 13 between 8 percent and 38 percent (Ex. 27, pp. 8 & 9). In her report Stricklett testified "A reasonable estimate of the extent of industrial disability relative to Ms. Blodgett's permanent impairment and physical restrictions would appear to fall within the 20 percent to 25 percent range." (Ex. 57, p. 10). At the hearing Stricklett testified that after listening to claimant testify she would estimate that claimant's industrial disability was now much higher because her condition had deteriorated but at the same time Stricklett acknowledged she had no new medical evidence to support this conclusion. Stricklett concluded by testifying that using aggressive selective placement that she could find claimant a full-time job in her career field (Tran., p. 103). There was no evidence from either party as to why Stricklett had not been hired to do so. Michael L. Newman, M.S., CVE, a vocational rehabilitation consultant and part-owner of Heartland Rehabilitation did not interview claimant personally but gave a report dated September 5, 1991, based upon various written materials that he had examined (Ex. 28; Tran. pp. 134, 135 & 143). Newman determined that the restrictions of physical therapist Dobler and Dr. Kratochvil, based upon the conditionally valid functional capacity assessment, were both subjective and self-imposed (Ex. 28, pp. 3 & 4). In addition, he stated that claimant's job seeking efforts had been only fair to poor (Ex. 28, p. 5). Newman's report and various other Heartland reports support the fact that claimant did not send out resumes to all of the job leads furnished to her; she frequently did not send out a resume until two months after she received the job lead; claimant failed to follow-up the resumes with a telephone call requesting an interview. He said her reasons included the inaffordability of making telephone calls, sending resumes and driving to attend an interview. She refused to let Heartland send out resumes on her behalf. She became angry when Heartland contacted the employers to see if they had received a resume. Newman concluded, "This behavioral pattern is well established and indicates, for whatever reason, that the client is not conducting an effective job search." (Ex. 28, p. 5; Ex. 29 & Ex. 45). At the hearing, Newman admitted that he was aware of the fact that some of these so called job possibilities were not actually hiring people but were only accepting resumes (Tran., p. 150). Heartland actually began contacting claimant on behalf of the claim administrator, Sedgwick James, on December 27, 1990 and continued to make contacts through October 3, 1991, through various representatives (Ex. 30-44). Newman agreed with Stricklett that claimant had lost access to 75 percent of the available jobs for nurses, but like Stricklett he could identify selective jobs as a registered nurse that claimant could perform within her restrictions of sedentary work and no strenuous lifting or repetitive bending (Ex. 28, Tran. pp. 137, 138 & 139). Newman said claimant was earning $13.50 per hour prior to Page 14 the injury and that the jobs available to her now paid between $9 and $15 per hour (Ex. 28, Tran. p. 140). Claimant testified that she earned roughly $13 to $13.50 per hour (Tran., p. 26). Newman concluded "It's my opinion, based on her work history, her experience and the type of work that she could obtain through salvaging her career that it's going, her industrial disability is going to hover around ten percent." (Tran. p. 141). Newman disagreed with Stricklett that claimant required aggressive on-hands hard sell placement by accompanying the prospective employee to see prospective employers and to work out some starting arrangement. Newman testified that this "... service is not a standard practice in our profession." (Tran., p. 156). He said most prospective employees do not want this service. He had never heard of it before. He could only visualize it in the case of a mentally retarded person or a person with a head injury or some other cognitive problem that would prevent them from speaking on their own behalf (Tran. 153 & 154). Due to claimant's other liabilities in addition to the aggravation of her degenerative disc disease she may well be difficult to place because of her hypertension which is corrected by medication, her insulin dependent diabetes, her exogenous obesity and her emotional problems. Newman further testified that a 75 percent loss of access to the labor market could equal a tremendous loss of earning power and in some cases it might not have much impact at all. He estimated claimant's loss of earning capacity at 10 percent (Tran. pp. 158 & 161). Newman pointed out that claimant was not totally foreclosed from practicing her profession of being a registered nurse. He said she retains the ability from a qualification standpoint to procure employment within her profession at a different exertional level (Tran., p. 162). Jodi Strehle began to work for Heartland Rehabilitation in August of 1991. She conducted a job search for claimant in the months of August, September and October of 1991. Strehle testified that she contacted 311 employers and found that 53 of them hired nurses in sedentary positions. She forwarded these names to claimant or her attorney at the request of the attorney. In follow-up telephone calls she found that 21 of these prospective employers had received resumes from claimant and 21 of these prospective employers had not received resumes from claimant (Tran., pp. 110 & 111). Strehle admitted on cross-examination that the employers did not necessarily have jobs available for claimant at that time nor were they hiring people at that time, but rather these employers were simply those that did in fact hire registered nurses for sedentary work (Tran., pp. 122 & 123). More than half the so called prospective employers on Strehle's list either did not have a position available or were not hiring at that time (Ex. 45). Strehle testified that she is an injured employee Page 15 herself with a work-related cervical disc injury. Her employer, Methodist Hospital, continued her employment as a utilization review nurse at the same rate of pay for two years until she took this job with Heartland. On her own personal job search she found 30 to 40 employers who would hire a nurse for a sedentary position, she had seven or eight interviews which resulted in four job opportunities that were all sedentary in nature. She decided to take the one with Heartland (Tran., pp. 115-117). Strehle admitted that it was difficult for her to find a sedentary position for a registered nurse when she made her job search (Tran., pp. 128 & 129). Claimant's industrial disability is increased by the fact that this injury occurred as she approached the peak years of her earnings career. Claimant was 39 years old at the time of the injury and 41 years old at the time of the hearing (Tran., pp. 19 & 28). Becke v. Turner-Busch, Inc., Thirty-fourth Biennial Report of the Industrial Commissioner 34 (1979). Walton v. B & H Tank Corp., II Iowa Industrial Commissioner Report 426 (1981). McCoy v. Donaldson Company, Inc., file numbers 782670 & 805200 (App. Dec. 1989). Claimant is capable of retraining or additional training. She began nursing in 1972, as a nurse aid. She started community college in 1983 and worked to become qualified as a licensed practical nurse (LPN) by 1985. She received her associate degree from community college and passed the registered nurse licensing examination in 1988. In addition, claimant has taken several courses toward the goal of receiving a bachelor of science in nursing (BSN). Thus, claimant is intelligent and is willing to study to achieve her goals in order to be employable. Conrad v. Marquette School, Inc., IV Iowa Industrial Commissioner Report 74, 89 (1984). Both Newman and Stricklett, however, testified that there should be positions available in claimant's chosen career field of nursing of a sedentary nature without the necessity of engaging in additional formal education or training. Stricklett acknowledged that finding sedentary employment for a nurse is difficult. At the same time, claimant has not exhibited a determined effort to find employment. Newman accurately described her job search as ineffective. Since claimant has not made a serious effort to find and maintain employment it is difficult to assess accurately the true amount of industrial disability which she has sustained. Schofield v. Iowa Beef Processors, Inc., II Iowa Industrial Commissioner Report 334, 336 (1981). When claimant returned to work on a temporary part-time basis in March of 1991, her immediate supervisor, Susan Lorkovic made accommodations for claimant according to Jeanette Obal, Heartland's representative (Ex. 32, Ex. 33, p. 2). According to Obal, Lorkovic reported on March 20, 1991, that claimant was tolerating her return to work well (Ex. 35). Nevertheless, claimant subjectively determined that she was unable to do the job and Dr. Kratochvil took her back off work again on April 1, 1991, until he determined that she had attained maximum medical Page 16 improvement on June 27, 1991. Newman correctly determined that claimant's inability to work is subjective and self-imposed. Nevertheless, Dobler determined that as a result of his physical capacity assessment that claimant should be limited to sedentary work. Furthermore, Dr. Kratochvil accepted claimant's subjective and self-imposed limitations as true. He fully subscribed, on several occasions, to the physical capacity assessment that claimant should be limited to sedentary work and avoid strenuous lifting and repetitive bending and that these restrictions were caused by this injury. The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). It should also be noted at this point that Dr. Kratochvil was the insurance carriers choice of physician and that they removed claimant's care from Dr. Fruin to Dr. Kratochvil in exercising their right to chose the care pursuant to Iowa Code section 85.27. After claimant was unable to resume clinical or general nursing duties in April of 1991, employer refused to rehire claimant unless she was released to return to work without any restrictions. Claimant testified that she tried several times to go back to work at Mercy Hospital but that they were unwilling to accept her for employment that fell within her restrictions. The evidence shows that employer does have some sedentary jobs but none that have been available to claimant. Employer in this case is a large corporation which employs many nurses in many different types of jobs in its work force. Under such circumstances, the refusal to reemploy claimant or to find any work for her within her restrictions is strong evidence of a severe lack of employability. 2 Larson Workers' Compensation Law section 57.61. Claimant acknowledged that it was not only Mercy Hospital but other hospitals did not want to hire her within her restrictions (Tran., p. 80). At the same time claimant's failure to make a serious job search tends to reduce the amount of industrial disability. An employee seeking workers' compensation would do well to make a diligent attempt to find employment. Hild v. Natkin & Co., I Iowa Industrial Commissioner Report 144 (Appeal Decision 1981). Tuberty v. Harold Dicky Transport, Inc. file number 798936 (February 29, 1992). Beintema v. Sioux City Engineering Co., II Iowa Industrial Commissioner Report 24 (1981); Cory v. Northwestern States Portland Cement Company, Thirty-third Biennial Report of the Industrial Commissioner 104 (1976). Employers are responsible for the reduction in earnings capacity caused by the injury, they are not responsible for a reduction in actual earnings because the employee resists returning to work. Williams v. Firestone Tire and Rubber Co., III Iowa Industrial Commissioner Report 279 (1982). Claimant testified that she is limited to only driving 20 or 30 miles, however, Newman testified that there was no medical evidence to support this self-imposed limitation of claimant on her driving ability. Page 17 Newman accused claimant of sabotaging her own job search by using a cover letter on her resume which emphasized the fact that she had a work-related injury, a 5 percent impairment and was still recovering from the injury. Newman recanted when he learned that a commercial firm in Council Bluffs had prepared this letter for claimant and that she had not done so herself. The hard fact is, however, that claimant is foreclosed from what is described as clinical or general nursing duties which is the most common type of employment available to registered nurses. She is now restricted to selective, hybrid types of a sedentary nursing developed only in recent times and according to Newman are not even listed in The Dictionary of Occupational Titles (Tran. p. 138). Strehle testified that her employer found sedentary employment for her of a temporary nature for two years at the same pay until she decided to change jobs. This employer was unable to perform the same accommodation for this claimant. Strehle also acknowledged that she found it difficult to find a sedentary job. Strehle also demonstrated more diligent search for sedentary employment than claimant when she wanted to find it. Claimant sat for approximately four hours during the hearing and did not demonstrate any back discomfort even though she testified that she could only sit for approximately 30 minutes. She did, however, testify that this much sitting was difficult for her (Trans., p. 82). Wherefore, based upon the following factors (1) that claimant sustained an aggravation of her degenerative disc disease by a sprain/strain to her lumbar spine, (2) that claimant experienced a long and difficult period of recovery, (3) that the treating physician, Dr. Kratochvil, determined that claimant had sustained a 5 percent permanent physical and functional impairment to the body as a whole, (4) that Dr. Kratochvil determined that claimant was restricted to sedentary employment for the indefinite future and is restricted from strenuous lifting or repetitive bending, (5) that claimant is approximately 40 years of age and near the peak point in her earnings capacity, (6) that claimant is retrainable but there should be no need for retraining due to her already specialized training as a nurse and her pursuit of courses to obtain a BSN in nursing, (7) that employer initially attempted to accommodate the injury but claimant insisted that she was not able to perform the job due to her own subjective and self-imposed limitations, (8) the employer then determined that claimant should not return to work unless claimant had a full release for clinical nursing duty and that employer was not able to find sedentary work for claimant, (9) that claimant's functional capacity assessment was only conditionally valid and based upon subjective opinion, but nevertheless, Dobler, the physical therapist, and Dr. Kratochvil, the treating orthopedic surgeon, concurred that claimant was restricted to performing only sedentary work for the indefinite future, (10) that claimant usually weighs between 295 and 330 pounds Page 18 and has suffered from exogenous obesity for several years, (11) that claimant suffers from hypertension which is regulated by medication and is also an insulin dependent diabetic, (12) that claimant has experienced a number of emotional problems both before and after this injury, (13) that claimant did not actively and diligently search for work of a sedentary nature after Dr. Kratochvil determined that she had attained maximum medical improvement on June 27, 1991, (14) that claimant is foreclosed from approximately 75 percent of the jobs available to registered nurses, (15) based upon all the evidence of record in this case, (16) based upon all the factors used to determine industrial disability Christensen v. Hagen, Inc., vol. I, no. 3, State of Iowa Industrial Commissioner Decisions 529 (App. Dec. March 26, 1985); and Peterson v. Truck Haven Cafe, Inc., vol. 1, no. 3 State of Iowa Industrial Commissioner Decisions 654, 658 (App. Dec. February 28, 1985) and (17) applying agency expertise [Iowa Administrative Procedure Act 17 A.14(5)] it is determined that claimant has sustained a 30 percent industrial disability to the body as a whole and is entitled to 150 weeks of permanent partial disability benefits. credits Defendants are entitled to a credit for any compensation they paid to claimant when she returned to work on a temporary basis part-time in March of 1991. However, this credit will have to be worked out by the parties between themselves for the reason that it was not designated as an issue to be determined by this decision and there is not sufficient evidence in the record at this time to make that determination. The evidence is also insufficient to calculate temporary partial disability benefits pursuant to Iowa Code section 85.33(2) through 85.33(5). medical Claimant contended that the work hardening/physical therapy facility in Council Bluffs had not been paid at the time of the hearing (Tran., pp. 65-67). Exhibit 49 is an itemized statement of mileage expense (Tran., pp. 65-67). Medical is not one of the designated issues to be determined by this decision. Moreover, it is noted on the prehearing report signed by both parties that all requested medical benefits have been or will be paid by defendants. Therefore, defendants should keep this commitment. penalty benefits It is determined that claimant is entitled to 25 weeks of penalty benefits at the rate of $178.55 per week which is 50 percent of her normal rate of compensation (50 percent of 357.10 = $178.55). Iowa Code section 86.13 (4) provides for penalty benefits up to 50 percent for the delay in commencement or the termination of benefits without reasonable or probable cause or excuse. Page 19 Defendants knew in April of 1991 that claimant had a very serious disability when employer, who employs numerous nurses, had absolutely no employment for claimant within her restrictions. In this case Dobler, who was hired and paid by defendant, determined that claimant could only perform sedentary work on May 17, 1991 (Ex. 24). On June 27, 1991, Dr. Kratochvil defendant's choice of physician, determined that claimant had attained maximum medical improvement and had sustained a 5 percent permanent impairment of the whole person as a result of this injury and was still incapable of returning to work (Ex. 8). Stricklett, claimant's vocational rehabilitation witness, testified that claimant was limited to sedentary work. Newman and Strehle, defendants' vocational rehabilitation witnesses, testified that claimant was limited to sedentary employment. They learned that in May of 1991 from Dobler. The reports of Obal and Johnson, defendant's vocational rehabilitation specialists indicated that claimant was limited to sedentary employment after June 5, 1991 (Ex. 38). Thus, defendants knew that claimant not only had a 5 percent permanent physical and functional impairment rating but also knew that claimant was greatly restricted from returning to the general or clinical nursing labor market and was restricted to the narrow, hybrid and specialized limited fields of sedentary nursing ever since May 17, 1991. The defendant insurance carrier either knew, or should have known, as an ordinary reasonable and prudent workers' compensation insurer that claimant would receive an award greater than the 5 percent permanent physical/functional impairment rating. On October 15, 1991, Stricklett determined (1) that claimant had a 75 percent loss of access to the employment market, (2) had sustained a 20 to 25 percent loss of earning capacity and required aggressive hands-on selective job placement (Ex. 27). Newman testified at the hearing that he agreed with Stricklett that claimant had lost 75 percent access to the employment market as a registered nurse but he indicated that her loss of earning capacity was 10 percent. The testimony of Newman has been available to defendants as Newman became a partner of Heartland on June 3, 1991 (Tran., p. 41). Thus, defendants not only did not pay a compromise amount of industrial disability between the percentages of Stricklett and Newman but did not even pay the bare minimum 10 percent assessed by their own professional witness, Newman. According to the arguments of defendants counsel they felt they owned claimant approximately 30 weeks of healing period benefits from October of 1990 to sometime in May 1991 and an additional 5 percent permanent partial disability which would constitute another 25 weeks. This total is approximately 55 weeks. The parties stipulated on the prehearing report that defendants had paid claimant 53 weeks of workers' compensation benefits at the rate of $357.10 per Page 20 week prior to hearing. Therefore, it is obvious, that defendants paid claimant no more than the 5 percent permanent impairment rating, whereas at bare minimum, as an ordinary reasonable and prudent workers' compensation insurance carrier, it should have paid claimant on a basis of a 10 percent industrial disability simply to protect themselves from an award of penalty benefits, based on the opinion of their own hired evaluator. Furthermore, it could be argued persuasively that they should have paid claimant even more than 10 percent when it is considered that claimant was eventually awarded 30 percent. Wherefore, it is determined that defendants cannot conscientiously and justifiably state that there was a legitimate dispute on either causation or the extent of impairment of at least 10 percent on June 27, 1991. Juste v. HyGrade Food Products Corp., IV Iowa Industrial Commissioner Reports, 190 (App. Dec. 1984). Likewise, and in more recent times it has been determined that penalty benefits are not due where defendants assert a claim that is fairly debatable. Seydel v. University of Iowa Physical Plant, file number 818849 (App. Dec. 1989); Stanley v. Wilson Foods, file number 753405 (App. Dec. 1990); Heidt v. Lynn Photo Company, file number 916737 (App. Dec. 1992); Place v. Giest Construction Company, file numbers 931185, 891539 (1992); Shelton v. McDonalds Hamburgers, file number 976855 (1992); Lloyd v. Western Home, file number 890207 (App. Dec. 1991). The fairly debatable standard which was announced in the tort case of Dolan v. Aid Insurance Company, 431 N.W.2d 790 (Iowa 1989) appears to have been adopted for workers' compensation cases in Dodd v. Oscar Mayer Foods Corp., file number 724378 (1989); Throgmartin v. Precision Pulley Inc., file number 885869 (On Appeal) (1990); Collins v. Hawkeye Moving & Storage, file number 873651 (1990). Where the employer failed to pay permanent partial disability in accordance with the rating of its own chosen physician (the lowest rating in the record), the failure to pay was determined to be unreasonable and a 50 percent penalty was assessed. Stanley v. Wilson Foods Corp., file number 753405 (1990). Likewise in this case, when claimant's evaluator determines a 20 to 25 percent loss of earnings capacity and defendants evaluator at hearing testifies to a 10 percent loss of earnings capacity it must be determined that defendants unreasonably failed to pay at least an additional 5 percent or 25 weeks of permanent partial disability benefits. Wherefore, it is determined that claimant is entitled to 25 weeks of penalty benefits pursuant to Iowa Code section 86.13(4) based upon a 50 percent penalty of the stipulated rate of $357.10 in the amount of $178.55 ($357.10 x 50 % = $178.55) in the total amount of $4,463.75. The Supreme Court of Iowa has recently stated that it Page 21 is even interested in going beyond Iowa Code section 86.13(4) to punish employers who wrongfully deny needy injured workers their rightful entitlement to workers' compensation benefits. Boylan v. American Motors Insurance Company, No. 250/91-1520, Iowa Supreme Court filed September 23, 1992. conclusions of law Wherefore, based upon the foregoing and following principles of law, these conclusions of law are made: That claimant sustained an injury to the lumbar spine of an aggravation of her preexisting degenerative disc disease caused by a sprain/strain that occurred at work on October 17, 1990, when she attempted to rescue a patient from falling out of bed. Iowa Code section 85.3(1). McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). That the injury was the cause of both temporary and permanent disability based upon the clear and unequivocal testimony of claimant's primary treating orthopedic surgeon which was selected by employer and insurance carrier. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L.O. Boggs Co., 236 Iowa 296 18 N.W.2d 607 (1945). That claimant is entitled to a total of 45.429 weeks of healing period benefits based upon two separate periods of healing (1) October 19, 1990 through June 27, 1991, which is 36 weeks and (2) March 4, 1992 through May 8, 1992, which is 9.429 weeks. These two periods total 45.429 weeks of healing period benefits. Iowa Code section 85.34(1). That claimant has sustained a 30 percent industrial disability to the body as a whole and is entitled to 150 weeks of permanent partial disability benefits. Iowa Code section 85.34(2)(u). That claimant is entitled to penalty benefits for 25 weeks at the rate of $178.55 in the total amount of $4,463.75. Iowa Code section 86.13(4). order THEREFORE IT IS ORDERED: That defendants pay to claimant forty-five point four two nine (45.429) weeks of healing period benefits at the rate of three hundred fifty-seven and 10/100 dollars ($357.10) per week in the total amount of sixteen thousand two hundred twenty-two and 70/100 dollars ($16,222.70) commencing on October 19, 1990, but interrupted for the period between June 28, 1991 and March 4, 1992 when claimant is entitled to permanent partial disability benefits because claimant had attained maximum medical improvement and failed to demonstrate any improvement during that period of time but commencing again on March 4, 1992 through May 8, 1992 Page 22 [as stipulated to by the parties (Tran., p. 15)] when claimant participated in physical therapy/work hardening and there is evidence that her condition improved again. Iowa Code section 85.34(1). That defendants pay to claimant one hundred and fifty (150) weeks of permanent partial disability benefits at the rate of three hundred fifty-seven and 10/100 dollars ($357.10) per week in the total amount of fifty-three thousand five hundred sixty-five dollars ($53,565) commencing on June 28, 1991 but interrupted by the period that claimant received additional healing period benefits between March 4, 1992 and May 8, 1992. That defendants are entitled to a credit for fifty-three (53) weeks of workers' compensation benefits paid to claimant prior to hearing in the amount of three hundred fifty-seven and 10/100 dollars ($357.10) per week in the total amount of eighteen thousand nine hundred twenty-six and 30/100 dollars ($18,926.30) as stipulated to by the parties in the prehearing report. Defendants are also entitled to a credit for wages earned during the period of temporary part-time trial return to work in March of 1991. That although medical benefits were not an issue to be determined by this decision claimant has asserted a claim for the work hardening/physical therapy and mileage to and from that training and the parties specified in the prehearing report that defendants either had paid or would pay all requested medical benefits. These items therefore should be paid by defendants. That interest will accrue pursuant to Iowa Code section 85.30 on unpaid weekly benefits. That all accrued benefits are to be paid in a lump sum. That defendants pay claimant twenty-five (25) weeks of penalty benefits in the amount of one hundred seventy-eight and 55/100 dollars ($178.55) per week based upon a 50 percent (50%) penalty in the total amount of four thousand four hundred sixty-three and 75/00 dollars ($4,463.75). Interest will not accrue on medical benefits or penalty benefits. Klein v. Furnace Electric Company, 384 N.W.2d 370 (Iowa 1986), until after the date of this decision. That the costs of this action are charged to defendants pursuant to Iowa Code sections 86.19(1) 86.40 and rule 343 IAC 4.33. That claimant is specifically entitled to the filing fee in the amount of sixty-five dollars ($65) and the report of Dr. Fernandez in the amount of one hundred twenty-five dollars ($125) as shown on Exhibit 50. The actual payment of these costs was not disputed at paragraph D on the prehearing report. That defendants file claim activity reports as requested by this agency pursuant to rule 343 IAC 3.1. Page 23 That defendants file all delinquent forms 2, 2A and 2B which were not filed with this agency prior to hearing pursuant to rule 343 IAC 3.1(2) through (4), within thirty (30) days of the signing and filing of this decision. Signed and filed this ____ day of January, 1993. ______________________________ WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Jacob J. Peters Attorney at Law 233 Pearl Street P.O. Box 1078 Council Bluffs, IA 51502-1078 Mr. Melvin Hansen Richard D. Crotty Attorneys at Law 800 Exchange Building 1905 Harney Street Omaha, NE 68102 Page 1 51106, 51108.50, 51401, 51402.20, 51404.30 1802, 1803, 1807, 2700 4000.2 Filed January , 1993 Walter R. McManus, Jr. before the iowa industrial commissioner ____________________________________________________________ : SUSAN BLODGETT, : : Claimant, : : vs. : : File No. 965009 CATHOLIC HEALTH CORPORATION, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : RELIANCE NATIONAL INSURANCE : COMPANY, Represented by : : SEDGEWICK JAMES, Administrator: : Insurance Carrier, : Defendants. : ___________________________________________________________ 51106, 51108.50, 51401, 51402.20, 51402.30 All of the evidence, medical and non-medical, established injury. Nothing contradicted claimant's account of the injury. 1802, 2700 (reasonable refusal of medical care) The treating orthopedic physician established causal connection. His testimony was not controverted, but rather was compatible with other physicians who treated claimant. Claimant awarded healing period from time she first missed work until the treating physician said she attained maximum medical improvement, even though he also said she was not able to work after that point and remained under his care. He determined she had attained maximum medical improvement because she resisted the treating modalities that he suggested of a caudal block, myelogram, MMPI and pain management center. Claimant's refusal of these modalities was not unreasonable so as to terminate weekly benefits, but did give the physician good cause for stating that in his opinion she had attained maximum medical improvement. Claimant awarded a second period of healing when she agreed to participate and the treating physician ordered additional Page 2 physical therapy/work hardening. The doctor said this improved her condition. 1803, 1807 Claimant, age 39, registered nurse, sustained a five percent physical/functional impairment, but was foreclosed from clinical/general duty nursing and was restricted to sedentary nursing. Employer could find nothing for her to do. Claimant's work search was very ineffective. Claimant awarded 30 percent industrial disability. 4000.2 Claimant awarded 50 percent penalty benefits. Defendants knew at the end of healing period that claimant was foreclosed from general duty nursing and was limited to sedentary nursing. Employer had no work she could do. The physical capacity assessment ordered by defendant limited her to sedentary work even before the end of healing period. Defendants' vocational rehabilitation persons all knew claimant was restricted to sedentary work. Both claimant and defendants' vocational rehabilitation consultants agreed that claimant had lost access to 75 percent of the labor market for registered nurses. Claimants evaluator said she had a 20 percent to 25 percent loss of earnings capacity. Defendants' own evaluator said claimant had a loss of 10 percent of earning capacity. Yet, defendants only paid claimant 5 percent industrial disability apparently based on the physical impairment rating. It was determined that the ordinary, reasonable and prudent insurance carrier handling workers' compensation claims either knew or should have known that claimant would have been awarded a bare minimum of 10 percent industrial disability and probably more. Defendants penalized for another 5 percent or 25 weeks of penalty benefits. It was held that defendants' did not have a legitimate dispute as to the causation or extent of impairment (Juste v. Hygrade) nor was it fairly debatable that claimant was entitled to much more than a payment of 5 percent (Seydel v. University of Iowa). Defendants failed to pay the evaluation of their own evaluator, save consider a compromise between claimant's and defendants' evaluators. It was pointed out that the Supreme Court of Iowa has opened new remedies against defendants who wrongfully deny injured workers their rightful entitlement to workers' compensation benefits. Boylan v. American Motors Insurance Company. Page 1 before the iowa industrial commissioner ____________________________________________________________ : DEANA WILLIAMS, : : Claimant, : : vs. : : File Nos. 965106 & : 938333 DEPARTMENT OF NATURAL RESOURCES,: : A R B I T R A T I O N Employer, : : D E C I S I O N and : : STATE OF IOWA, : : Insurance Carrier, : Defendant. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration upon the petition of claimant, Deanna Williams, against her employer, Department of Natural Resources and the State of Iowa, defendant. The case was heard on October 31, 1991, in Des Moines, Iowa at the office of the Industrial Commissioner. The record consists of the testimony of claimant. The record also consists of the testimony of Irene Ray, claimant's supervisor. Additionally, the record consists of claimant's exhibits 1 and 2 and defendant's exhibits A through E. issues The issues to be determined are: 1) whether claimant sustained an injury on September 14, 1990, which arose out of and in the course of her employment; 2) whether the injury of September 14, 1990, is a cause of temporary or permanent disability; 3) whether the injury of December 26, 1989, is a cause of permanent disability; 4) whether claimant is entitled to medical benefits pursuant to section 85.27; and, 5) whether claimant is entitled to penalty benefits pursuant to section 86.13(4). findings of fact The deputy, having heard the testimony and considered all the evidence, finds: Claimant is 32 years old. She commenced her employment on June 20, 1989. Claimant was hired as a Clerk 3 with the Department of Natural Resources. Because of the governor's lay-off program, claimant was terminated on August 9, 1991. Page 2 Since that date claimant has been receiving unemployment compensation. Claimant's duties were varied while she was employed at the Department of Natural Resources. She filed documents, prepared microfilm, answered the phone, serviced the public at a counter, moved and stacked file boxes, did some typing, mailed rule requests, sorted files and organized documents. On December 26, 1989, a file divider weighing approximately five pounds fell diagonally across claimant's right wrist. Claimant was taken to the emergency room at Des Moines General Hospital for medical attention. A splint and medications were prescribed for claimant. Claimant continued to experience pain. Eventually claimant received a stellate ganglion block for reflex sympathetic dystrophy of the right arm secondary to trauma. (Exhibit B, page 6) A second and a third stellate ganglion block were performed several days later. Claimant participated in physical therapy as well as occupational therapy per Mark B. Kirkwood, D.O. Dr. Kirkland diagnosed claimant as having neuroproxia/contusion of the right median nerve. Claimant returned to work on February 15, 1990, for half days. After a period of time claimant returned to her full time duties. In his office notes of March 12, 1990, Dr. Kirkland wrote: Deanna [sic] returns today and she really has no complaints. She states occasionally her forearm will burn on her but most likely she feels this is secondary to weakness. She has been working her normal job without any restrictions. On physical examination today there is no temperature change compared to the contra-lateral hand and forearm. She has good grip strength bilaterally. She has full range of motion of her right wrist. At this time I do not need to see Deanna [sic] back unless she has problems. I feel fortunate we were able to correct this malady on time. If she has any problems, she should return to see us. (Ex. E, p. 32) Claimant had no problems with her right wrist for a period of time. She returned to her full time duties which were basically the same duties which she had before December 26, 1989. After her return to work, claimant again experienced difficulties with her arm and neck. She sought chiropractic care from Daniel J. Hannan, D.C. Dr. Hannan diagnosed claimant's condition as "cervical thoracic strain that is aggravated by physical or emotional stress." Dr. Hannan, after attempting treatment, referred claimant to Dr. Kirkland. On October 10, 1990, claimant saw Dr. Kirkland. He wrote in his office notes for that day: Page 3 Deana returns today complaining of a numbness, tingling feeling in the volar radial aspect of her right upper extremity and it is mainly the forearm. She states when she touches this area it does give her tingling and it goes into the thumb. She has recently been seen by a chiropractor and has been followed almost daily. She wanted to come back here because she knew that I had experienced what was wrong with her in the past. On physical exam her right hand is somewhat colder than the left, but this is not like it was before. She does not have alot [sic] of pain to palpation of her right upper extremity. With rubbing her volar radial aspect this does give her numbness and tingling. There is no numbness and tingling with palpating the dorsal radial aspect where the sensory branch of the radial nerve is. She has a negative tinels [sic] at the wrist. She does have general uncomfortableness with moving her right elbow, but no specific complaints. Her range of motion in her right wrist is full. Impression: Tendonitis/overuse syndrome of the right forearm.... (Ex. l, p. 34) Claimant's condition did not improve. As a result surgery was performed on November 20, 1990. A carpal tunnel release on the right wrist was performed. Dr. Kirkland, in his surgical notes, wrote: Findings: The patient did have narrowing of the median nerve as it passed deep to the transverse carpal ligament. There was some moderate hypertrophy of the teno synovium. As of January 8, 1991, claimant was released to return to work. Dr. Kirkland imposed the following restrictions: At this time, however, I feel that she is doing well enough that we could send her back to work. We will allow her to return to work tomorrow. She will have a twenty-five-pound lifting limitation at this time. This will be for a period of two weeks. After two weeks, she is allowed to progress to her full duty. If she has any problems, she is to return to see me. (Ex l, p. 37) Dr. Kirkland, on February 21, 1991, opined the following relative to claimant's condition: I last saw Ms. Deana Williams on January 07, 1991. I will now answer your questions in the same order you asked them of me. 1) I do agree that Ms. Williams' carpal tunnel syndrome was caused by her employment secondary to her repetitive use of her hands and fingers. She Page 4 does work in the Department of Natural Resources. 2) I do feel that she does have four (4%) percent permanent partial impairment to her right hand. 3) As far as future restrictions placed on Ms. Williams' activities to prevent risk of re-injury, these should avoid repetitive type of motions, repetitive heavuy [sic] lifting, and pulling. If you have any other specific questions, please feel free to contact me. (Ex. l, p. 28) Claimant returned to the same duties she had previous to her surgery. In August of 1991, claimant was terminated due to the governor's mandatory lay-off. As of the date of the hearing, claimant was not employed. conclusions of law The party who would suffer loss if an issue were not established has the burden of proving that issue by a preponderance of the evidence. Iowa R. of App. P. 14(f). The claimant has the burden of proving by a preponderance of the evidence that the alleged injury actually occurred and that it arose out of and in the course of employment. The words "arising out of" refer to the cause or source of the injury. The words "in the course of" refer to the time, place and circumstances of the injury. Sheerin v. Holin Co., 380 N.W.2d 415, 417 (Iowa 1986); McClure v. Union, et al., Counties, 188 N.W.2d 283, 287 (Iowa 1971). The claimant has the burden of proving by a preponderance of the evidence that the injury is a proximate cause of the disability on which the claim is based. A cause is proximate if it is a substantial factor in bringing about the result; it need not be the only cause. A preponderance of the evidence exists when the causal connection is probable rather than merely possible. Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296, 297 (Iowa 1974). The question of causal connection is essentially within the domain of expert testimony. The expert medical evidence must be considered with all other evidence introduced bearing on the causal connection between the injury and the disability. The weight to be given to any expert opinion is determined by the finder of fact and may be affected by the accuracy of the facts relied upon by the expert as well as other surrounding circumstances. The expert opinion may be accepted or rejected, in whole or in part. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Page 5 A personal injury contemplated by the workers' compensation law means an injury, the impairment of health or a disease resulting from an injury which comes about, not through the natural building up and tearing down of the human body, but because of trauma. The injury must be something which acts extraneously to the natural processes of nature and thereby impairs the health, interrupts or otherwise destroys or damages a part or all of the body. g's Sportswear, 332 N.W.2d 886 (Iowa 1983); Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); Martin v. Skelly Oil Co., 252 Iowa 128, 106 N.W.2d 95 (1960). With respect to file number 938333, claimant has not proven that she has sustained a permanent partial disability to her right hand as a result of her injury on December 26, 1989. Claimant was released to return to work on February 15, 1990, with temporary restrictions for two weeks. After the two week period, claimant was released to full duty with no restrictions whatsoever. Dr. Kirkland opined that after claimant had returned to full duty, she had full range of motion of the right wrist. Claimant also had good grip strength, with no complaints, and no temperature changes in her wrist. Dr. Kirkland provided a full release. Claimant sustained no permanent partial disability. Claimant did sustain a temporary total disability with respect to file number 938333. Pursuant to section 85.33, claimant was temporarily and totally disabled from December Page 6 26, 1989 through February 15, 1990. Claimant was entitled to 7.429 weeks of benefits at the stipulated rate of $181.76 per week. With respect to file number 965106, claimant has proven by a preponderance of the evidence that she has sustained an injury which arose out of and in the course of her employment. Claimant performed various activities once she returned to work on February 15, 1990. All of the various activities required the use of claimant's right hand and wrist. For example, claimant was required to type, she was required to pull staples from papers, to flip pages, carry and lift boxes and lift pieces of equipment. All of the activities were repetitive in nature. Claimant's treating neurosurgeon related claimant's hand condition to her activities at work. Dr. Kirkland's opinion is accorded much weight. He had been treating claimant's condition and had ample time to observe claimant. Dr. Kirkland is an orthopedic surgeon. His expertise is recognized. Claimant has sustained her burden of proof. She has sustained an injury which arose out of and in the course of her employment. Claimant has proven that she has sustained a permanent partial disability. Again, the opinion of Dr. Kirkland is given greater weight. He opined that claimant had a four percent impairment to her right hand. The parties stipulated that if defendant was held liable, then claimant was entitled to six weeks of permanent partial disability benefits to the right hand at the stipulated rate of $189.97 per week. It is determined that claimant is entitled to the same. The next issue to determine is the extent of healing period benefits to which claimant is entitled. Section 85.34(1) provides that healing period benefits are payable to an injured worker who has suffered permanent partial disability until (1) the worker has returned to work; (2) the worker is medically capable of returning to substantially similar employment; or (3) the worker has achieved maximum medical recovery. The healing period can be considered the period during which there is a reasonable expectation of improvement of the disabling condition. See Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa App. 1981). Healing period benefits can be interrupted or intermittent. Teel v. McCord, 394 N.W.2d 405 (Iowa 1986). In the case at hand, claimant was off work because of her work injury from September 17, 1990 to January 7, 1991. As of January 8, 1991, claimant was released to return to work with restrictions. Claimant is entitled to 16.143 weeks of healing period benefits at the stipulated rate of $189.97. The next issue to determine is whether claimant is entitled to medical benefits pursuant to section 85.27. The employer shall furnish reasonable surgical, medical, dental, osteopathic, chiropractic, podiatric, physical rehabilitation, nursing, ambulance and hospital services and supplies for all conditions compensable under the workers' Page 7 compensation law. The employer shall also allow reasonable and necessary transportation expenses incurred for those services. The employer has the right to choose the provider of care, except where the employer has denied liability for the injury. Section 85.27.; Holbert v. Townsend Engineering Co., Thirty-second Biennial Report of the Industrial Commissioner 78 (Review decision 1975). Claimant has the burden of proving that the fees charged for such services are reasonable. Anderson v. High Rise Constr. Specialists, Inc., file number 850096 (Appeal Decision 1990). Claimant is not entitled to reimbursement for medical bills unless claimant shows they were paid from claimant's funds. See Caylor v. Employers Mut. Casualty Co., 337 N.W.2d 890 (Iowa App. 1983). In this case, defendant denied claimant's claim. Therefore, defendant did not have the right to select claimant's medical care. Defendant is liable for: Mark Kirkland, D.O. $ 970.00 Steven Adelman, D.O. 330.00 Des Moines Bone & Joint 90.00 Surgery Center of Des Moines 835.00 M. S. Igbal 170.00 Total $2,395.00 Defendant is not liable for the charges of Daniel J. Hannan, D.C. His medical charges relate to cervical strain, headaches, muscle spasms, thoracic strain that is aggravated by physical or emotional stress and brachial plexus entrapment of the right upper extremity. There does not appear to be treatment rendered for carpal tunnel syndrome. His charges are not causally related to claimant's carpal tunnel syndrome. The final issue to address is whether claimant is entitled to penalty benefits pursuant to section 86.13. Section 86.13 permits an award of up to 50 percent of the amount of benefits delayed or denied if a delay in commencement or termination of benefits occurs without reasonable or probable cause or excuse. The standard for evaluating the reasonableness of defendants' delay in commencement or termination is whether the claim is fairly debatable. Where a claim is shown to be fairly debatable, defendants do not act unreasonable in denying payment. See Stanley v. Wilson Foods Corp., file number 753405 (Appeal Decision, August 23, 1990); Seydel v. Univ. of Iowa Physical Plant, file number 818849 (Appeal Decision, November 1, 1989). In this instance, claimant is not entitled to penalty benefits pursuant to section 86.13. At the time of claimant's second injury, she reported to her supervisors that she had problems with her back and neck. At that point in time, it was reasonable for the supervisors to take claimant at her word. There was no reason for the supervisors to believe the injury was work related. The supervisors acted reasonably in denying the claim. Therefore, claimant is not entitled to benefits under the Page 8 final paragraph of section 86.13. order THEREFORE, IT IS ORDERED: Defendant is to pay unto claimant seven point four-two-nine (7.429) weeks of temporary total disability benefits for file number 938333 at the stipulated rate of one hundred eighty-one and 76/l00 dollars ($181.76) commencing on December 26, 1989. Defendant is to pay unto claimant six weeks of permanent partial disability benefits for file number 965106 at the stipulated rate of one hundred eighty-nine and 97/l00 dollars ($189.97) commencing on January 8, 1991. Defendant is to also pay unto claimant sixteen point one-four-three (16.143) weeks of healing period benefits for file number 965106 which represents the period from September 17, 1990 through January 7, 1991, at the stipulated rate of one hundred eighty-nine and 97/l00 dollars ($189.97). Defendant is also liable for two thousand three hundred ninety-five and no/l00 dollars ($2,395.00) in medical expenses pursuant to section 85.27, Iowa Code. Accrued benefits are to be paid in a lump sum together with statutory interest at the rate of ten percent (10%) per year pursuant to section 85.30, Iowa Code, as amended. Defendant shall take credit for benefits previously paid claimant. Costs are taxed to defendant pursuant to rule 343 IAC 4.33. Defendant shall file a claim activity report as requested by this division pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of November, 1991. ______________________________ MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Harry W. Dahl, III Attorney at Law 974 73rd St Suite 16 Des Moines IA 50312 Page 9 Ms. Joanne Moeller Assistant Attorney General Tort Claims Division Des Moines IA 50319 5-1800; 1801; 1802; 1803.1 Filed November 25, 1991 MICHELLE A. McGOVERN before the iowa industrial commissioner ____________________________________________________________ : DEANA WILLIAMS, : : Claimant, : : vs. : : File Nos. 965106 & : 938333 DEPARTMENT OF NATURAL RESOURCES,: : A R B I T R A T I O N Employer, : : D E C I S I O N and : : STATE OF IOWA, : : Insurance Carrier, : Defendant. : ___________________________________________________________ 5-1800; 1801; 1802; 1803.1 Claimant was entitled to healing period benefits, four percent permanent partial disability benefits, and temporary total disability benefits for two injuries to claimant's right hand.